Citation Nr: 9824476
Decision Date: 08/13/98 Archive Date: 07/27/01
DOCKET NO. 98-02 838 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased disability rating for residuals
of medial meniscectomy, right, with degenerative changes,
currently evaluated as 20 percent disabling.
ATTORNEY FOR THE BOARD
M. L. Kane, Associate Counsel
REMAND
The veteran had active military service from April 1955 to
April 1959. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from an October 1996 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Montgomery, Alabama, which granted a 20
percent disability rating for the veteran's service-connected
right knee disorder. The veteran disagreed with the assigned
rating. For the following reasons, additional evidentiary
development is warranted prior to appellate disposition of
the veteran's claim.
The Board does not have sufficiently clear medical evidence
on which to base a decision. The report of the VA
examination conducted in 1996 is inadequate for fully
evaluating the veteran's right knee disability. The veteran
had limitation of motion of the right knee, and it was
indicated that the veteran had pain on motion, see 38 C.F.R.
§ 4.59. However, there was no discussion of the extent of
any functional loss due to pain, see 38 C.F.R. § 4.40. See
also DeLuca v. Brown, 8 Vet. App. 202 (1995). This is
especially important in light of the veteran's statements
that he is unable to climb stairs or walk adequately due to
his right knee condition. Therefore, it is appropriate to
schedule the veteran for an additional examination in order
to obtain this information and evaluate his right knee
disability appropriately.
In DeLuca v. Brown, 8 Vet.App. 202 (1995), the Court held
that, in evaluating a service-connected disability involving
a joint, the Board erred in not adequately considering
functional loss due to pain under 38 C.F.R. § 4.40 and
functional loss due to weakness, fatigability, incoordination
or pain on movement of a joint under 38 C.F.R. § 4.45. The
Court in DeLuca held that Diagnostic Codes pertaining to
range of motion do not subsume 38 C.F.R. § 4.40 and § 4.45,
and that the rule against pyramiding set forth in 38 C.F.R. §
4.14 does not forbid consideration of a higher rating based
on a greater limitation of motion due to pain on use,
including use during flare-ups. The Court remanded the case
to the Board to obtain a medical evaluation that addressed
whether pain significantly limits functional ability during
flare-ups or when the joint is used repeatedly over a period
of time. The Court also held that the examiner should be
asked to determine whether the joint exhibits weakened
movement, excess fatigability or incoordination. If
feasible, these determinations were to be expressed in terms
of additional range of motion loss due to any pain, weakened
movement, excess fatigability or incoordination.
Furthermore, there are additional medical records that the RO
should attempt to obtain. The veteran submitted a letter
from Mary Altz-Smith, M.D., indicating, in pertinent part,
that Dr. Altz-Smith had treated the veteran for his right
knee disorder. The RO has not requested Dr. Altz-Smith's
treatment records. The veteran's treatment records are
relevant to his claim for an increased disability rating and
necessary for a full and fair adjudication of his claim.
Robinette v. Brown, 8 Vet. App. 69 (1995). Therefore, an
effort to obtain these records is warranted.
Accordingly, although the Board regrets the delay, in order
to assure that appellate consideration is fully informed, the
case is REMANDED to the RO for the following:
1. Ask the veteran to identify the names
and complete addresses of any medical
providers who have treated him for his
right knee disorder since 1996. After
securing any necessary releases, request
from the sources listed all records of
any treatment indicated by the veteran
which are not already on file, including
his records from Mary Altz-Smith, M.D.
All records obtained should be associated
with the claims file. If any private
treatment records are not obtained, tell
the veteran, and inform him that it is
his ultimate responsibility to furnish
evidence in support of his claim.
38 C.F.R. § 3.159(c) (1997).
2. Schedule the veteran for an
examination by an appropriate specialist
in order to fully evaluate his right knee
disability. The entire claims file and a
copy of this remand are to be made
available to the examiner, and the
examiner is asked to indicate in the
examination report that he or she
reviewed the claims file.
All indicated tests are to be performed
and must include range of motion testing
for both right and left knees. The
examiner should state what is considered
normal range of motion. Whether there is
any pain, weakened movement, excess
fatigability or incoordination on
movement should be noted, and whether
there is likely to be additional range of
motion loss due to any of the following
should be addressed: (1) pain on use,
including during flare-ups; (2) weakened
movement; (3) excess fatigability; or (4)
incoordination. The examiner is asked to
describe whether pain significantly
limits functional ability during flare-
ups or when the right knee is used
repeatedly. The examiner should elicit
information as to precipitating and
aggravating factors (i.e., movement or
activity), effectiveness of any pain
medication or other treatment for relief
of pain, functional restrictions,
including from pain on motion, and the
effect the service-connected disability
has upon the veteran's daily activities.
See DeLuca v. Brown, 8 Vet. App. 202
(1995).
The medical rationale for all opinions
expressed must be provided.
3. Following completion of the above,
review the claims folder and ensure that
the report includes fully detailed
descriptions of all opinions requested.
If it does not, it must be returned to
the examiner for corrective action.
38 C.F.R. § 4.2 (1997).
4. Thereafter, readjudicate the
veteran's claim for an increased
disability rating for his right knee
disorder. If the benefit sought on
appeal remains denied, provide the
veteran a supplemental statement of the
case and allow an appropriate period for
response. The veteran is free to furnish
additional evidence and argument while
the case is in remand status. Booth v.
Brown, 8 Vet. App. 109 (1995).
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
further action until he is further informed. The purpose of
this REMAND is to obtain additional medical information. No
inference should be drawn regarding the final disposition of
this claim as a result of this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (Historical and Statutory Notes) (West Supp. 1998).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).